Massachusetts DUI Attorney Blog

Actress Lindsay Lohan was ordered to jail this week for violating probation and failure to undergo alcohol counseling, the New York Post reported.

A Massachusetts OUI charge carries the threat of significant penalties, including jail time, mandatory counseling, probation, fines and court costs. Sometimes defendants find themselves in additional trouble for failing to properly comply with the terms of probation.

Drunk driving charges frequently involve motorists with little or no experience with the criminal justice system. An experienced Boston OUI lawyer can make sure you understand what you need to do to remain in compliance and will have the knowledge and experience necessary to defend you if you are ever brought to the court for a probation violation hearing, sometimes referred to as a probation surrender hearing in Massachusetts.

In Lohan's case, the L.A. judge sent her to jail for 90 days for failure to attend educational classes ordered as part of her plea agreement to two DUI arrests in 2007. Lohan had fallen behind in class attendance and had been ordered in December to begin attending once a week. Instead, she missed seven weeks of classes and a court date in May when she was at the Cannes Film Festival and said she lost her passport.

The actress was ordered to report to jail on July 20. Jail personnel said she would likely serve about 25 percent of her sentence, or about 25 days behind bars. Lohan was sentenced to 30 days for reckless driving, and 30 days for two separate DUI arrests that came in May and July of last year.

The judge also ordered Lohan to enter an inpatient substance abuse treatment program within two days of her release. Prosecutors were not allowed to introduce evidence that Lohan's alcohol monitoring bracelet indicated she had consumed alcohol on June 7, the night of the MTV Movie Awards.

It is the latest is a series of legal problems for the actress, who had her probation revoked in May after missing a hearing stemming from a three-year-old drug and alcohol case.

Continue reading "Jail sentence for Lindsey Lohan highlights risks of Massachusetts probation violations" »

The New Mexico Supreme Court ruled that a police officer can make a DUI arrest without a warrant even when the defendant is inside his home and the police did not observe the motorist drive. The case is City of Santa Fe v. Marcos Martinez.

In the Martinez case, the police received a tip from a mall employee that Martinez was drunk and tried to unlock several vehicles before speeding away. The police tracked down Martinez's vehicle at his house; when he came to the front door, the officers claim that he was falling down drunk. The officers felt the hood of Martinez's car which was still warm at the time.

When the officer came to the front door, he could see the defendant staggering in his house. The defendant then reached up to unlock the door. The officer then entered the residence without a warrant.

The New Mexico Supreme Court found that the actions of the officer were proper under the State's misdemeanor arrest rule. The Court did not address the Constitutional issue of whether the defendant's arrest was valid under the Fourth Amendment to the United States Constitution and accordingly, remanded the case to the district court.

This case raises in interesting issue for a Massachusetts OUI lawyers to consider. Under the United States Supreme Court decision of Welch v. Wisconsin, 466 U.S. 740 (1984)
a police officer cannot enter a home to make an arrest without a warrant for a misdemeanor.

This rule appears to have been violated in this case when the officer entered the house without a warrant to make a DUI arrest, which under Massachusetts OUI law would be a misdemeanor offense. The State would likely argue that the defendant gave consent to enter by unlocking the door; however, the court should find that unlocking the door does not constitute the actual consent necessary to justify a warrantless entry of a home under the 4th Amendment.

The case raises a second Constitutional question as to whether the store employee gave the officer a sufficient description of the motorist to even justify any seizure of the motorist.

Continue reading "Police can make DUI arrest without observing the motorist driving the New Mexico Supreme Court rules" »

A Massachusetts teenager, charged with bullying a 15-year-old girl who committed suicide, was arrested Sunday on a Massachusetts drunk driving charge, according to the Boston Globe.

Austin Renaud, 18, was arrested in Holyoke and released on bail, pending arraignment in Holyoke District Court.

Renaud is one of six teenagers charged with what prosecutors called "unrelenting" bullying of a South Hadley High School student who committed suicide on Jan. 14. He has pleaded not guilty to statutory rape in that case.

As a result of the OUI charge, Renaud's driver's license was suspended automatically for 30 days because he failed a breathalyzer test and for another 180 days because he is under the age of 21, the Boston Herald reported.

Police reported he was parked at the side of the street with his hazard lights flashing at about 3 a.m. He told a police officer he had hit the curb and had a flat tire. Officers reported he was unsteady on his feet, had bloodshot eyes and an odor of alcohol about his person. He reportedly told officers he had not been drinking but voluntarily submitted to sobriety tests, which showed a blood-alcohol level of .15.

Continue reading "Teen bullying suspect arrested on Massachusetts OUI charge" »

DUI charges were dismissed against former Chicago Blackhawk star Chris Chelios as a judge ruled that the police did not have probable cause to arrest Chelios for DUI.

In order for a police officer to arrest a motorist for DUI, the police must have probable cause to believe that the motorist is driving under the influence. Probable cause is a fairly low standard of proof which is generally satisfied through the officer's claiming that a motorist failed field sobriety tests. In cases with no field sobriety tests, the issue of whether probable cause supported the arrest can come into play. DUI case law holds that a mere odor of alcohol is insufficient to establish probable cause to arrest for DUI. In many cases, an officer will have other factors other than a odor of alcohol, such as slurred speech, bloodshot eyes, admissions to drinking and difficulty of the motorist maintaining balance.

While it is difficult to have a Massachusetts OUI dismissed based on a lack of probable cause to arrest, generally cases with a close issue as to probable cause are difficulty for the Commonwealth to prove at trial, where the standard of proof is much higher than probable cause, but requires proof beyond a reasonable doubt.

Continue reading "DUI Charges dismissed against former Blackhawks defenseman Chris Chelios" »

Arizona Linebacker Joey Porter was charged with DUI in California. According to news accounts, Porters friend was pulled over outside a Taco Bell when Porter pulled up to the scene. The officer requested Porter's license he refused to turn it over and rolled up the window. When the police officer tried to reach in, Porter slapped the officer's hand away. The officer grabbed Porter's arm and a confrontation ensued between Porter and the officer. Porter was charged with DUI, assault and battery on a police officer and resisting arrest.

In some Massachusetts DUI arrests, a OUI charge may arise from a confrontation with the officer. In Porter's case, it is unclear whether Porter was charged with DUI in retaliation for his confrontation with the police officer. It is unclear from the news accounts what evidence the police have that Porter was under the influence of alcohol. It does not appear that Porter drove erratically and in many cases with a confrontation with a police officer field sobriety tests are generally not given. An OUI lawyer in Massachusetts may defend a case like Porter's by trying to argue to the jury that although confrontation with the officer, the client was not under the influence of alcohol.

Continue reading "Arizona Cardinals Linebacker Joey Porter charged with DUI " »

Former Mets and Yankee pitcher Dwight Gooden was arrested for DUI after he rear ended another car while driving in New Jersey. The accident happened around 8:50 am according to news accounts and Gooden was recognized by the driver of the other car. Gooden was reportedly driving with his five year-old son in the car. Gooden was charged with driving under the influence of alcohol and drugs and released without having to post bail.

In Massachusetts, it is a separate criminal enhancement for anyone convicted of a DUI in Massachusetts while operating a motor vehicle under the influence with a child under the age of 14 in the car. This law under Massachusetts General Laws Chapter 90 Section 24V is known as child endangerment while operating under the influence of alcohol. The OUI child endangerment law imposes a one year license loss upon conviction.

Statistics show that DUI fatality rates have declined in 40 states. The DUI statistics show that strict enforcement of DUI laws have resulted in a reduced fatality rate. The study indicates that eight states, including Connecticut and the District of Columbia saw a decline in DUI homicide and or death cases by twenty percent or more. Maryland ranks as among the states with the lowest rate of DUI death cases in United States. Massachusetts DUI fatality rates also declined according to the study.

In three states, DUI homicide cases stayed the same while seven states saw an increase in the rate of DUI death cases, including Rhode Island. The Transportation Secretary Ray LaHood announced a seven million dollar advertising campaign to warn drivers against the dangers of drinking and driving.

The New York legislature is considering passing a child endangerment statute similar to the one adopted by the Massachusetts legislature. Under Massachusetts OUI law, Chapter 90 Section, 24V, any OUI charge while a child is present in the car who is under 14 will result in a motorist being charged with OUI child endangerment. This offense is taken very seriously by Massachusetts judges and could result in the imposition of jail time and will result in a one year loss of a Massachusetts driver's license upon conviction.

The legislation contemplated in New York would make an DUI child endangerment a felony offense. Additionally, the New York legislature is contemplating requiring the ignition interlock device after a first offense DUI conviction.

A Chicago police officer is alleged to have fabricated DUI charges. According to the news accounts, the officer Richard Fiorito allegedly fabricated DUI charges against gay motorists. Fiorito's conduct came to light as a result of police car cameras contradicting his police report stating that the operator was driving erratically. The officer fabricated DUI charges in order to earn greater overtime pay as a result of having to testify in court.

While most police officers are honest, some police officer do overstate their observations to justify a DUI arrest and support a conviction in court. A Massachusetts DUI attorney can challenge the officers statements through cross examination to contest the officer's allegations in the police report.

Continue reading "officer's false DUI police report confirms the importance of hiring an experienced Massachusetts OUI lawyer " »

A DUI summit was conducted in Missouri regarding efforts to increase DUI penalties. Massachusetts OUI laws are always being made harsher by the legislature and trends in other states will put pressure on the Massachusetts legislature to revisit and increase DUI penalties. The potential for increased DUI penalties is a primary reason to carefully consider hiring an experienced Massachusetts OUI lawyer to defend your case.

Recent studies continue to demonstrate a growing national trend of a greater number of DUI arrests involving women. As a Massachusetts DUI lawyer, some cross examination techniques and points of emphasis at trial work better when defending a female motorist. While it is difficult to generalize, a female motorist may feel a greater sense of nervousness performing field sobriety tests on the side of the road in front of a male police officer.

Additionally, in some cases, a female motorist may not be dressed appropriately to perform these balance and coordination tests, rendering the results useless. Though officers should let a female motorist remove high heel, performing a one leg stand or walk and turn bare foot on the side of the road is an unfair test. Despite these facts, of nervousness and unfair conditions which can be amplified when women are stopped for DUI, officers generally do not allow female motorists, or any motorist, the opportunity to retake field sobriety tests at the police station, where weather will not influence the results, traffic conditions and where the tests can be recorded.

Continue reading "DUI Statistics show increase in DUI arrests in Massachusetts for women. " »

The star of The Hills, Stephanie Pratt was arrested for DUI in Hollywood, California. According to news accounts, it appears that Pratt has a strong case as the news reports from the officers state that it was a basic DUI arrest and that Pratt was polite and cooperative at the scene.

A successful DUI defense in Massachusetts involves emphasizing all of the normal and appropriate actions of the motorist. Most officers will acknowledge that some drunk drivers are uncooperative and belligerent and have sharp mood swings. A driver that is polite and cooperative with the police, shows normal reaction to the situation, demonstrates characteristics that are consistent with sobriety. While a good demeanor alone will not ensure an acquittal, it is an example of a normal response of the motorist that is inconsistent with someone under the influence.

Generally, officers fail to mention anything in the police report during booking and in making the arrest. At booking an officer will have significant time to observe a DUI suspect and the lack of any observations regarding impairment undermine the opinion made at the scene that the driver was under the influence.

Continue reading "Successful Massachusetts DUI defense and polite and cooperative demeanor" »

Three company star Joyce DeWitt was charged with DUI in California. Like Massachusetts a person arrested for DUI in California can be charged under two theories, one known as a per se theory prohibits a driver from operating a motor vehicle with a breath alcohol reading of .08 or greater while the other prohibits a motorist from operating a motor vehicle when impaired by alcohol. Massachusetts OUI law refers to these theories like California as an impairment prong, based on field sobriety tests and officer observations and a per se prong which is based on a breathalyzer reading. In Massachusetts a breathalyzer reading taken within three hours of driving is presumed to reflect the breath alcohol reading at the time of driving unless other circumstances can show that a lesser period of time is reasonable under the circumstances.
If a person is found guilty of a Massachusetts DUI, the potential penalties are the same regardless of which theory the Government pursues. Generally, the Commonwealth proceeds under both theories if a breathalyzer test is taken by the motorist.

Continue reading "DUI CHARGE BROUGHT AGAINST FORMER STAR OF THREE'S COMPANY" »

Former University of Kentucky basketball coach, Billy Gillispie was charged with DUI this week. Gillispie was charged in Kentucky and has twice been arrested for DUI once in Oklahoma and once in Texas according to news reports. In the Oklahoma case, Gillispie avoid a DUI conviction by accepting a plea to a lesser charge.

In Massachusetts, the importance of avoiding DUI convictions is extremely important as Massachusetts has a lifetime look back for all prior DUI offenses that include convictions in other states. Accordingly, any time a motorist is arrest for DUI in Massachusetts the offense level is based on all prior DUI convictions regardless of whether or not they occur in Massachusetts. Sometimes the district attorney's office is not aware of an out of state conviction or cannot prove an out of state conviction at trial, but even if the charge is treated as a lesser DUI offense in the court, the Registry of Motor Vehicles will go by its own records of prior DUI convictions.

Generally, the only way to avoid a DUI conviction in Massachusetts is to proceed to trial as it is rare for a district attorney to agree to dismiss or reduce an OUI charge to a lesser offense of negligent operation. Even if a breathalyzer is below the legal limit of .08, most Massachusetts OUI defends will be forced to proceed to trial in order to obtain an acquittal on the charge as district attorneys generally have a policy against reducing or dismissing an OUI charge.

Continue reading "Former University of Kentucky basketball coach charged with DUI" »

In Massachusetts, as in other states, legislation to ban sending text messages while driving and cell phone use while driving is being considered in light of studies showing that sending text messages while driving is more dangerous than drunk driving. Legislatures are considering other factors that distract a drivers attention and contribute to negligent operation and reckless operation of a motor vehicle, causing accidents.

Continue reading "Texting while driving more dangerous than DUI in Massachusetts " »